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Power of Attorney - Financial/Medical

What is a Power of Attorney?

A power of attorney is a legal document that grants another person the right to act on your behalf. The person who signs (executes) a power of attorney is called the principal. The power of attorney for finances and property matters gives legal authority to another person (called an agent or attorney-in-fact) to make property, financial and other legal decisions for the principal.

A health care power of attorney gives legal authority to another person (called an agent or attorney-in-fact) to make medical and other legal decisions for the principal. While some states refer to a health care power of attorney as a "health care proxy," a "health care directive," an "advance directive," or a "medical power of attorney," in this Guide we will refer to such documents generally as a health care power of attorney.

A principal can give an agent broad legal authority, or very limited authority. The power of attorney is frequently used to help in the event of a principal's illness or disability or in legal transactions where the principal cannot be present to sign necessary legal documents.

Powers of attorney are effective during the life of the principal only. A durable power of attorney withstands the physical or mental disability of the principal. A durable power of attorney remains in effect even if the principal becomes incapacitated and cannot make decisions for him or herself and is only effective if the principal is alive.

For The People offers the following types of Powers of Attorney:

  • General Power of Attorney for Finances and Property Matters
  • Limited Power of Attorney for Finances and Property Matters
  • Health Care Power of Attorney / Health Care Directive

What kinds of legal authority can be granted with a power of attorney for finances and property matters?

Whether effective immediately or in the future or whether general or limited, a power of attorney for finances and property matters can be used to grant any, or all, of the following legal powers to an agent:

  • Buy or sell your real estate
  • Manage your property
  • Conduct your banking transactions
  • Invest, or not invest, your money
  • Make legal claims and conduct litigation
  • Attend to tax and retirement matters
  • Make gifts on your behalf
  • Pay your bills

What kinds of legal authority can be granted with a health care power of attorney?

A health care power of attorney allows someone to make health care decisions for you in case you are unable to make those decisions on your own.

Who should I choose to be my power of attorney agent?

You should choose a trusted family member, a proven friend, or a professional with an outstanding reputation for honesty. Remember, signing a power of attorney that grants broad authority to an agent is very much like signing a blank check.

Can I appoint more than one agent in a power of attorney?

The For The People workbook in some states has an option for you to appoint multiple agents to serve at the same time. If it is an option in your state's workbook and if you appoint two or more co-agents, you must decide whether they must act together in making decisions involving your affairs, or whether each can act separately.

There are advantages and disadvantages to both forms of appointment. Requiring your agents to act jointly can safeguard the soundness of their decisions. On the other hand, requiring agreement of all your agents can result in delay or inaction in the event of a disagreement among them, or the unavailability of one of them to sign legal documents.

Allowing your agents to act separately may ensure that an agent is always available to act for you. But it may also result in confusion and disagreements if the agents do not communicate with one another, or if one of them believes that the other is not acting in your best interests.

What if I no longer want the person I chose to act on my behalf?

You may revoke your power of attorney at any time. For The People can prepare your Power of Attorney Revocation at a reasonable cost.

You should notify your bank or other financial institution where your agent has used the power of attorney that it has been revoked.

Once I sign a power of attorney, may I continue to make legal and financial decisions for myself?

Yes. The agent named in a power of attorney is your representative acting on your behalf. As long as you have the legal capacity to make decisions, you can direct your agent to do only those things that you want done.

For The People Offers:

1. General Power of Attorney for Finances and Property Matters

A general power of attorney for finances and property matters allows you to delegate broad authority over your personal financial affairs. It usually can be used immediately and continues to be in effect even if you become incapacitated or incompetent.

This may be very important to have if you become incapacitated (temporarily or permanently), have an accident or have a serious illness and are unable to pay your bills, deposit your checks and manage your financial affairs.

Having a durable power of attorney stops the court from having to appoint someone to take control of your finances and make decisions for you.

An alternative to a general power of attorney that is effective immediately is the springing power of attorney, which doesn't become effective until you become incapacitated or incompetent.

2. Limited Power of Attorney for Finances and Property Matters

A limited power of attorney can make business or financial transactions much easier, simply by allowing a busy or absentee party to send somebody to act in his or her place. A limited power of attorney refers only to the matter at hand (i.e., "the purchase of the real estate in Anytown, USA, known as 123 Oak Street") and details the expiration date and full extent of the power.

Without this limitation and specificity, banks or others to whom it is presented might not accept the power of attorney. Additionally, some parties require your bank to guarantee your signature on the power of attorney.

If you plan to use a stand-in at a real estate or business closing, make sure he or she is acting under a power of attorney that has been approved in advance by the other parties and/or title company.

An alternative to a limited power of attorney that is effective immediately is the springing power of attorney, which doesn't become effective until you become incapacitated or incompetent.

3. Health Care Power of Attorney / Health Care Directive

A health care power of attorney is an important document to have in place if you become unable to make medical decisions for yourself. You might also hear it referred to as a "health care proxy," a "health care directive," an "advance directive," or a "medical power of attorney."

It names someone who you trust to make medical decisions for you if you are temporarily incapacitated or seriously ill. Many people choose to keep limited copies of certain documents such as trusts and durable powers of attorney.

However, most people find they can never have enough copies of their health care power of attorney to ensure in the event of an accident or illness that their wishes and instructions are carried out. Appointed agents, family members and doctors would certainly want to have a copy or know where they can locate one. When choosing someone to be your health care power of attorney, you'll want someone who:

  • Basically agrees with your views and whose judgment you trust
  • Can stand up for your preferences
  • Can talk comfortably with doctors

You may have specific wishes you want to spell out for your family. For example, you might:

  • Prefer to use hospice care if you're close to dying
  • Have religious objections to certain medical treatments
  • Have an illness and want to clarify what sort of end-of-life medical treatment you'd prefer - or want to refuse.

What is a Living Will?

A living will allows you to convey your wishes regarding medical treatment when those wishes can no longer be personally communicated. It is a written document that states your desires regarding life-support or other medical treatment being withheld or withdrawn in certain circumstances, usually when death is imminent or a state of coma or vegetation becomes permanent.

It is either a separate document or part of a health care power of attorney, depending on the state in which you live. A living will enables you to make essential decisions for or against life support now to safe-guard your wishes in the event of a tragic occurrence.

What is a "Springing" Power of Attorney?

A springing power of attorney becomes effective at a future time. That is, it "springs" into effect upon the happenings of a specific event specified in the power of attorney. Often that event is the illness or disability of the principal.

The springing power of attorney is used because some people just feel uncomfortable making a delegation of power today, while still healthy. While that sentiment is quite understandable, the potential problems should be considered, too.

The potential problem is that there usually must be a formal determination of disability before the power of attorney will be considered operative and be accepted. At best, this means at least a short delay and expense. At worst, there might be uncertainty, disagreement or squabbling among doctors and/or family over the degree of your disability. Banks or others might balk at recognizing the authority of the attorney-in-fact for this reason. When this situation unfolds, the matter often winds up in court - which was the very thing you wanted to avoid.

What are my agent's responsibilities?

The agent is obligated to act in your best interest, and to avoid any "self-dealing." Self- dealing is acting to further the selfish interests of the agent, rather than the best interest of the principal.

Your agent must safeguard your property, and keep it separate from their personal property. Money should be kept in a separate bank account for your benefit. Some powers of attorney and the laws of some states require agents to keep accurate financial records of their activities, and to provide complete and periodic accountings for all money and property coming into their possession.

Who monitors the actions of my agent?

There is no official or government monitoring of agents acting pursuant to power of attorney. That is the responsibility of the principal. It is therefore important to insist that your agent keep accurate records of all transactions completed for you, and to provide you with periodic accountings. You might also direct your agent to give an accounting to a third party in the event you are unable to review the accounting yourself.

A power of attorney can be abused, and dishonest agents have used powers of attorney to transfer the principal's assets to themselves and others. That is why it is so important to appoint an agent who is completely trustworthy, and to consider requiring the Agent to provide complete and periodic accountings to you or to a third party.

How does my agent sign on my behalf?

The preferred way for your agent to sign a document on your behalf by way of a power of attorney varies according to the organization or institution you are dealing with. Usually the agent will sign the agent's name followed by the words "as agent for [your name] under power of attorney dated." However, your agent should always verify with the organization or institution how they want the agent to sign on your behalf.

How many copies of a power of attorney should I sign?

You are required to sign (execute) only one copy. However, it is not unusual for a principal to sign several original copies. Banks and financial institutions, for example, generally require an original or a certified copy before allowing an agent to transact business on the principal's behalf.

Do I need to have my power of attorney recorded?

Although you generally do not need to have your power of attorney recorded, you usually can file a copy with the County Clerk or County Recorder. If you record your document and later revoke it, be sure to record the revocation with the County Clerk or County Recorder's office as well.

What should I do with my completed power of attorney document?

First, talk to the person you picked as your agent. Talk to him or her about what you want and how you want help. You should also let family members know about your power of attorney. You should make copies. Keep one copy for yourself, give one copy to your agent, and give a copy to any institution your agent is likely to do business with (like your bank).

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